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TMI Blog2014 (6) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... e Pump is deployed for suction of concrete through one cylinder and discharge from the other cylinder. The entire intake and discharge of Concrete is automatic. The appellants were getting the compensation on the basis of cubic meter of concrete pumped. They had also deployed certain manpower to ensure the proper functioning of the pumps. Pumps were deployed at various sites where the constructions, activities were going on. Appellants' rates per cubic meter were consolidated and included all taxes, vat etc. They were also paying service tax on the said activity under Business Support Service from May 2007 to January 2008. The Business Support Service included "Infrastructural Support Service." There was no dispute about the taxability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doctrine of unjust enrichment is not applicable and in support of their contention they quoted the following case laws: (i) Commissioner of Cus., Tuticorin vs. Virudhunagar Textile Mills Ltd. 2008 (230) E.L.T. 411 (Mad.) (ii) Dabur India Ltd. Vs. Commr. Of C.Ex., Ghaziabad 2008 (228) E.L.T 131 (Tri-Del) (iii) Pride Foramer Vs. Commissioner of Customs (Import), Mumbai 2006 (200) E.L.T. 259 (Tri-Mumbai) (iv) C.C.E., Chennai- III vs. Saralee Household & Bodycare India (P) Ltd. 2007 (216) E.L.T. 685 (Mad) (v) Cimmco Ltd. Vs. Collector of Central Excise, Jaipur 1999 (107) E.L.T. 246 (Tribunal) (vi) Commissioner of C.Ex. Bhavna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... includes the "infrastructure support service" and the appellants were providing equipment alongwith operator and prima facie it cannot be concluded that the appellants were not providing infrastructure support service. In fact they were also providing Manpower and it was their duty to ensure proper functioning of the pumps. Under the circumstances prima facie it cannot be said that the tax being paid by them was incorrect, just because from 2008 onwards a new, specific entry was introduced in the tariff. However, I note that original authority has held in their favour on merits and no appeal has been filed by the department against the said order and therefore the issue on the merits is not before me. 7. I have also gone through the agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the present case are different then in all the said cases and are therefore not applicable. In the case of Virudhunagar Textile Mills Ltd. (supra) the importer has imported capital goods and was using in his premises and had produced Chartered Accountant Certificate that the burden of import duty is not passed on to any one that the Hon'ble Madras High Court has taken a view that the doctrine of unjust enrichment will not be applicable. In the case of Dabur India Ltd. (supra) differential duty was paid after the clearance of the goods on confirmation of the demand and under those circumstances, this Tribunal held that the doctrine of unjust enrichment will not be applicable. In the case of Pride Foramer (supra) amount was deposited pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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